Manchester City Council v Cochrane

In proceedings to recover possession from an introductory tenant, compliance with the notice requirements of section 128 of the Housing Act 1996 both establishes the county court’s jurisdiction and requires it to make a possession order under section 127(2). The court cannot determine the merits of the landlord’s allegations or the lawfulness of a review conducted under section 129(2).

The duty to conduct a lawful review is a public law duty enforceable by judicial review. The county court may grant a temporary adjournment where there is a real chance that permission for judicial review will be granted, but it cannot itself review the authority’s decision or stay proceedings to compel reconsideration.

The council granted the respondents a one-year introductory tenancy under Part V of the Housing Act 1996. Before the trial period expired, it served a notice complying with section 128, conducted a requested review under section 129 and commenced possession proceedings. The tenants alleged that the review breached the applicable regulations and the requirements of natural justice.

A district judge held that the county court could determine those defences. His Honour Judge Howarth dismissed the council’s appeal. The council appealed to the Court of Appeal, contending that section 127(2) required a possession order once section 128 had been satisfied and that any challenge to the review belonged in judicial review proceedings.

1. Appeal allowed unanimously. Sir John Knox, with whom Lord Justice Judge and Lord Justice Auld agreed, held that an introductory tenant’s private law right is limited to remaining in possession until the court makes a possession order. Section 127(2) of the Housing Act 1996 requires that order once the requirements of section 128 have been met.

2. Section 128 creates a narrow jurisdiction. The county court cannot entertain possession proceedings unless the statutory notice requirements are satisfied. Once they are satisfied, section 127(2) leaves the court no discretion to investigate the alleged tenancy breaches or refuse possession on their merits.

3. The landlord’s obligation under section 129(2) to conduct a lawful review is a public law duty. The tenant’s corresponding right is therefore enforceable by judicial review. The principle in Wandsworth London Borough Council v Winder [1985] AC 461 did not permit the proposed defence because the tenants lacked a substantive private law right extending beyond the statutory limitation imposed by section 127(2).

4. The county court may grant a temporary adjournment where there is a real chance that permission to seek judicial review will be granted. It cannot itself determine whether the review complied with natural justice, nor grant a stay designed to pressure the authority into reconsideration. Section 38(3) of the County Courts Act 1984 prohibits the county court from reviewing a public duty without statutory authority.

5. The contrast with the express county court appeal jurisdiction over homelessness reviews under sections 202 and 204 confirmed the narrower jurisdiction applicable to introductory tenancies. The operation of section 130 also supported that construction: allowing the county court to determine the review’s validity could finally determine the possession proceedings and unintentionally convert an unsatisfactory introductory tenancy into a secure tenancy.

6. The orders of the district judge and circuit judge were set aside. The council’s appeal from the district judge was allowed and the tenants’ defence was struck out.

1. Court of Appeal: The council’s appeal was allowed unanimously. The lower orders were set aside and the tenants’ defence was struck out.

2. Manchester County Court, His Honour Judge Howarth: On 18 June 1998 the judge dismissed the council’s appeal from the district judge.

3. Manchester County Court, District Judge Griffiths: On 9 June 1998 the district judge held that the county court could determine the proposed defences and gave directions for their further conduct.